What to do if I receive a disclosure notice in a proceeds of crime investigation?

6 Jun 2024

For many businesses and individuals, receiving a disclosure notice to provide information in relation to a POCA matter can be a deeply worrying experience. In this blog, Steffan Baker sets out the basic facts about these notices.


A disclosure notice is a formal demand from a UK law enforcement agency which obliges its recipient to provide information relevant to an investigation under the Proceeds of Crime Act 2002 (‘POCA 2002’).

Disclosure notices are issued under disclosure orders. They are used by law enforcement to gather evidence in investigations targeting the recovery of alleged criminally acquired assets.  

Receiving a disclosure notice can be a distressing experience. Disclosure notices can be worded in an alarming way; they can require a significant amount of work in response; and they can set short deadlines for compliance. They also carry the risk of severe penalties if not complied with properly.

Hickman & Rose specialise in advising individuals and organisations in relation to disclosure notices. Here we answer some commonly asked questions about them.

What is a disclosure notice?

Disclosure notices are investigatory tools for gathering information about property allegedly obtained by unlawful conduct. They require their recipients to provide the requesting law enforcement agency with information relevant to its investigation.

A disclosure notice can only be issued by a law enforcement agency after it has first obtained a disclosure order under the POCA 2002 from either the Crown Court (in confiscation and money laundering investigations); or the High Court (in civil recovery and exploitation proceeds investigations).

Disclosure orders are available to investigators from the National Crime Agency (NCA), the Serious Fraud Office (SFO), the Financial Conduct Authority (FCA), and His Majesty’s Revenue and Customs (HMRC).

For a disclosure order to be made, a court must be satisfied that:

  • There are reasonable grounds for suspecting property has been obtained through unlawful conduct;
  • the information which may be obtained would be of substantial value to the investigation, and that;
  • the application is in the public interest.

Once made, a disclosure order gives the law enforcement agency broad powers to issue notices which compel anyone the agency considers has relevant information to respond in specified ways.

Here ‘relevant information’ is defined as any information the investigator considers relevant to their investigation. This is a low threshold.

Who can receive a disclosure notice?

Disclosure notices can be sent to any individual or organisation within the jurisdiction of England and Wales who is considered to hold relevant information about the relevant property or funds that are the target of the investigation. [1]

The recipient of a disclosure notice may be suspected by the agency of engaging in unlawful conduct. But this is not necessarily the case.

Common recipients of disclosure notices include law firms, accountants, estate agents and banks.

These organisations may be hit with disclosure notices by investigators seeking to trace suspicious transactions or asset transfers conducted through legitimate professionals or businesses.

While disclosure notices share some characteristics with other investigatory tools such as production orders (under POCA 2002), they differ in two significant ways.

Firstly, law enforcement agencies can issue as many notices as they require under a single disclosure order. Unlike some other POCA orders which must be applied for separately on each occasion, once a disclosure order has been granted by a court, investigators are able to continue issuing disclosure notices under it for the duration of an investigation.

Secondly, a disclosure order allows the law enforcement agency to seek information and documents from individuals and organisations other than the target of a particular investigation. As highlighted above, this can include innocent or unwitting parties who, in conducting their usual business, become involved in a suspicious transaction or transfer.

So, to take a hypothetical example: if a law enforcement agency wants to examine the purchase of some real estate it may send disclosure notices to any lawyer, estate agent or mortgage lender involved in the transaction and which it considers may hold relevant information. The fact that none of these third parties may be suspected of unlawful conduct is irrelevant. They can still receive the notice.

How do disclosure notices work in practice?

Disclosure orders are often obtained without prior notification to anyone likely to be affected by the order. As a result of this, disclosure notices often arrive without any prior contact from law enforcement.  

Responding to a disclosure notice is done by way of either attending a formal interview, or providing information in writing, or producing documents. Notices often contain multiple requests for information, such as requesting attendance at interview, and producing documents.

A notice should warn the recipient that failure to comply with the requirements of a notice without a reasonable excuse is a criminal offence.

A notice will likely contain some limited information about the scope of the investigation and describe (in general terms) the nature of the information being sought from the recipient.

Also included with the notice should be evidence of a law enforcement agency’s authority to give the notice. This usually is usually done by supplying a copy of the relevant disclosure order. Without evidence of the authority being supplied, the recipient should not comply with any requirement imposed by the notice.[2]

The notice should also set out the way in which a recipient should provide relevant information and provide timescales for so doing. This means that if a recipient is required to attend an interview, the notice should give a specified time, date, and place for this to happen.

If a recipient has been asked to provide information in writing, then the notice should explain the type of information to be provided, plus the time and date by when and the method for so doing.

The timescales for compliance with a notice are often short and can leave those receiving them feeling under pressure to respond immediately.

There are various issues and potential pitfalls to consider before rushing to respond to a disclosure notice, some of which are addressed below.

Can I tell anyone about a disclosure notice or investigation?

Disclosure notices normally instruct their recipients not to discuss the contents of the notice with anyone other than the investigator who sent the notice.

The question of how closely a recipient must heed this request is not a straightforward one to answer.

In some cases, there may be a risk that in disclosing information about the notice or the investigation to which the notice relates, a recipient may commit the criminal offence of prejudicing an investigation.[3]

However, it is not an offence share a notice with a lawyer for the purposes of seeking advice.

One approach to managing this risk is not to tell anyone about the notice, or the investigation to which it relates, before obtaining expert legal advice.

There may still be risks in saying nothing to anyone but a lawyer. These include the risk of not being able to respond appropriately and promptly to the demands in the notice.

While it may be possible to discuss a notice with people other than a legal representative, as a matter of general principle it is important to try to limit and control how information about a notice and the underlying investigation is shared.

How should I respond to a disclosure notice?

A key task, when deciding how to respond to a disclosure notice, is to determine whether the recipient individual or organisation holds the requested information. This will include considering the steps necessary to identify and preserve potentially responsive information and documents.

This may be straightforward. For example: if the notice relates to a single transaction, then any relevant information or material maybe easily identified, secured and, if responsive to the order, disclosed to law enforcement.

The same may not be true if a request is more wide-ranging and nebulous.

Disclosure notices often target a broad range of assets or transactions. These may date from a long time ago or stretch over a long period. Requests can also often be vague or lack specificity.

In these cases, the requesting enforcement agency’s timetable for complying with the terms of the notice may be wholly unrealistic.

In this type of scenario there may be scope for coming to an agreement with law enforcement by which the timetable for compliance is modified. This may be especially useful where the notice seeks the production of a significant quantity of documents.

When responding to a disclosure notice’s request to produce documents, it is vitally important to take steps to preserve and secure potentially relevant material. The reason for this is that it is a criminal offence to falsify, conceal, destroy, or dispose of documents relevant to the investigation, or to permit this to happen.[4]

What happens at a disclosure notice interview?

Disclosure orders contain a power to ask questions, with the preferred method to obtaining answers being formal interview.  

For many this may be a daunting prospect. Unlike an interview in a criminal investigation there is no right to silence in an interview conducted pursuant to a disclosure notice. The interviewee is required to answer the questions put to them, so long as they are relevant to the investigation, within the scope of the disclosure order and notice, and there is not a reasonable excuse for not answering.

There is a risk of committing a criminal offence should a recipient make a statement in the interview which they know to be false or misleading.[5]

Given the requirement to answer questions, it is vital for any interviewee to get clarity over the issues to be dealt with in interview and to secure sufficient time to properly prepare their responses.

Any statement made in response to a notice cannot (subject to certain exceptions) be used in any criminal proceedings against the person who gave the information.

Interviewees also have the right to be accompanied to the interview by a solicitor or an accountant.

How does client confidentiality / LPP impact a disclosure notice?

The starting position for anyone who holds potentially responsive information which may be subject to a duty of confidentiality, is that a disclosure order will generally override the duty to maintain this confidentiality.

However, there are two categories of confidential information and material which are protected from disclosure under a notice.  These are documents or information subject to legal professional privilege (‘LPP’); and so-called ‘excluded material’.[6]

LPP is the duty of confidentiality attached to correspondence between a lawyer and their client where the lawyer is providing legal advice, and communications made in connection with – or in contemplation of – legal proceedings.

Under a disclosure order, no document may be removed or accessed, and no information sought by law enforcement, which is subject to LPP.

Similarly, a law enforcement agency cannot require anyone to provide information or documents that fall under the category of ‘excluded material’. Broadly speaking this comprises medical and other personal records held subject to a duty of confidentiality and some other protected categories such as journalistic materials. [7]

The difficulty for many who hold privileged or excluded information lies in identifying it and separating it from information that is not privileged or excluded.

This can require a complex sifting exercise to satisfy both the requirement to respond to the notice and the obligation owed to others, such as clients, whose privileged information or personal data must be protected from disclosure.

Can I challenge a disclosure order or notice?

Law enforcement agencies can and do make mistakes. Indeed, our experience shows this happens frequently. Sometimes mistakes can be rectified through negotiation. On other occasions it is necessary to challenge disclosure orders and notices through the courts.

A frequent issue with disclosure notices is that the requests for information they contain are too broad or vague to permit the recipient to properly understand how they can comply with the notice. Sometimes the information sought is irrelevant or beyond the scope of the investigation.

In these instances, there may be scope for negotiating with law enforcement to seek clarification or to narrow the scope of any request. If not, then there are options for challenging the order and notice in the courts. 

Anyone who is affected by a disclosure order, including anyone served with a notice, can potentially seek to discharge or vary the disclosure order. This is done by way of an application to the court which made the order.

In addition, if a law enforcement agency has acted outside its powers in obtaining the order, there may be other legal challenges that can be brought to bear.

Hickman & Rose has acted for both individuals and organisations who have been the subject of disclosure notices. We have helped them successfully navigate the many challenges that arise in responding to such notices.

[1] 357(4) POCA; Perry and others v Serious Organised Crime Agency [2012] UKSC 35

[2] s357(6) POCA 2002

[3] s.342(1) POCA 2002

[4] s342(2) POCA 2002

[5] s359(3)(a) POCA 2002

[6] Excluded material as defined in sections 11 and 12 of the Police and Criminal Evidence Act 1984

[7] s.361(5) POCA 2002



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